Neutral Citation: 2017 ONFSCDRS 59

FSCO A14-004571

BETWEEN:

VIJAYAKUMAR SATHIRASEKARAMPILLAI Applicant

and

AVIVA CANADA INC. Insurer

REASONS FOR DECISION

Before: Arbitrator Thérèse Reilly

Heard: By telephone conference on December 12, 2016 and submissions due January 31, 2017

Appearances: Mr. Vijayakumar Sathirasekarampillai did not participate Ms. Brittanny Tinslay participated for Aviva Canada Inc.

Issues:

The Applicant, Mr. Vijayakumar Sathirasekarampillai, was injured in a motor vehicle accident on April 24, 2012 and sought accident benefits from Aviva Canada Inc. (“Aviva”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Sathirasekarampillai, through his representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this Hearing are:

Should Mr. Vijayakumar Sathirasekarampillai’s Application for Arbitration be dismissed?
Is either party entitled to its expenses?

Result:

Mr. Sathirasekarampillai’s Application for Arbitration is dismissed.
Mr. Sathirasekarampillai is to pay Aviva’s expenses in the amount of $1,400.00 (inclusive of all costs, disbursements and taxes).

EVIDENCE AND ANALYSIS:

Chronology

The Pre-Hearing in this matter was held on November 5, 2015 at 12:00 p.m. The Applicant did not attend on that date. Dates were set for a Hearing. On October 25, 2016, the Applicant’s legal representative brought a Motion to be removed from the record on the basis that the representative had lost contact with the Applicant. To ensure proper notice of the Motion was served, I requested copies of the correspondence sent to the Applicant and rescheduled the Motion to December 1, 2016 at 8:30 a.m., to be heard by telephone conference. I sent a letter to the Applicant on October 31, 2016 by regular and registered mail, providing the Applicant with notice of the Motion.

The letter of October 31, 2016 also provided the Applicant with an Attendance Notice, setting a date of December 12, 2016 at 12:00 p.m., for a Hearing to be held by telephone conference call to hear the issues identified in the Application for Arbitration. The letter also advised him that, should he not contact our office or participate in any further proceedings, I would dismiss his Application for Arbitration and consider the Insurer’s request for expenses. This letter also stated that it shall serve as sufficient notice of Hearing.

The Insurer was also advised not to prepare for a contested Hearing on this matter.

The Applicant was advised in accordance with Rule 37.9 of the Dispute Resolution Practice Code (“DRPC”):

Where notice of hearing has been sent to a party and a party does not attend at an oral or electronic hearing, or participate in a written hearing, the arbitrator may proceed with the hearing in the party’s absence or without the party's participation, as the case may be, and the party is not entitled to any further notice in the proceeding.

On December 1, 2016, the Motion proceeded. The Applicant did not attend. I granted the Order to the Applicant’s representative to be removed from the record. Thus, the Applicant became self-represented.

On December 1, 2016, I sent a further letter to the Applicant by regular and registered mail, advising that I had granted the Order to remove his representative from the record and that the Applicant was now self-represented. The letter of December 1, 2016 was sent to the Applicant to his last known address. I provided the Applicant with another Attendance Notice, reconfirming the date of December 12, 2016 at 12:00 p.m., for the Hearing to be held by telephone conference call to hear the issues identified in the Application for Arbitration. The letter also advised him that should the Applicant not contact our office or participate in any further proceedings, I would dismiss his Application for Arbitration and consider the Insurer’s request for expenses. This letter also stated that it shall serve as sufficient notice of Hearing.

The Insurer was also advised not to prepare for a contested Hearing on this matter.

The Applicant was again advised in accordance with Rule 37.9 of the DRPC, above.

The Applicant was advised that in the event he did attend on that date, with or without representation, the Hearing would be converted into a resumption of the Pre-Hearing discussion.

Hearing

The Arbitration Hearing in this case proceeded at 12:00 p.m. on December 12, 2016, by teleconference arranged by ADR Chambers. The Applicant did not attend and did not participate. The Applicant did not provide any previous notice that he would be attending by telephone or in person. I was unable to contact the Applicant by telephone at the telephone number contained in the records of ADR Chambers. The Hearing proceeded in the Applicant’s absence pursuant to Rule 37.7 of the DRPC.

The Dismissal

For the reasons that follow, Mr. Sathirasekarampillai’s Application for Arbitration is dismissed.

The Insurer brought a Motion for a dismissal of the Application for Arbitration on the basis of the non-attendance at this proceeding.

Where notice of Hearing has been sent to a party and a party does not attend, the Arbitrator may proceed with the Hearing in the party’s absence or without the party’s participation, as the case may be, and the party is not entitled to any further notice of the proceeding.

I am satisfied that the Applicant was given notice of all the proceedings related to his Application for Arbitration at his last known address.

The Applicant bears the onus of proving entitlement to the claimed benefits. Since he did not appear at the Hearing and no evidence was presented to support his claims, this Application for Arbitration is dismissed.

Scheduling a Resumption

Subsequent to the completion of the Hearing, at approximately 1:00 p.m. on December 12, 2016, I was advised by staff at ADR Chambers that the Applicant attended in person at the offices of ADR Chambers located at 18 King Street East, where he inquired about the Hearing. The Applicant provided a cellular telephone number to staff and advised he could be reached at that telephone number. Staff subsequently provided me with that telephone number. When I tried the telephone number, I was advised it was not a working number.

In consideration of the Applicant’s attendance at 18 King Street East on December 12, 2016, I sent a letter to the Applicant on December 13, 2016, asking for dates when he would be available to schedule a resumption of the Pre-Hearing. The same letter was sent to the Insurer. The Applicant was advised once again that if I or ADR Chambers did not receive any response from him by January 31, 2017, his Application for Arbitration would be dismissed without further notice.

The Insurer, on January 3, 2017, provided dates for the purpose of scheduling a resumption of the Pre-Hearing. No reply was received from the Applicant by January 31, 2107 or thereafter.

Based on the non-attendance, and for reasons outlined above, this Application for Arbitration is dismissed.

EXPENSES:

The Insurer requested its expenses in respect of this Arbitration. I find that the Insurer, as the “successful party” within the meaning of subsection 12(2) of the Expense Regulation, R.R.O. 1990, Regulation 664, is entitled to its expenses. At the Hearing, the Insurer requested $1,400.00 in expenses, which includes $400.00 for the cost of travel by its client to a proceeding which the Applicant did not attend. I do not believe that this matter warrants a line by line examination of the Insurer’s expenses. The general approach with respect to fees is to take a pragmatic, broad-strokes approach, with a view to fixing an amount that includes fees, disbursements and taxes that is reasonable.

I fix the Insurer’s expenses at $1,400.00. I find this amount to be reasonable given the time required to review the file, obtain instructions, prepare and file a response, prepare and attend two Pre-Hearing discussions and a Motion to remove counsel from the record, and attend the Hearing.

Accordingly, and pursuant to subsection 282(11) of the Insurance Act, R.S.O. 1990, c. I.8, as amended, the Applicant is ordered to pay the Insurer’s expenses in the amount of $1,400.00, inclusive of all costs, disbursements and taxes.

February 21, 2017

Thérèse Reilly Arbitrator

Date

Financial Services Commission of Ontario